Raiha v. Coos Bay Coal & Fuel Co. ( 1915 )

Mr. Justice Moore

delivered the opinion of the court.

1. This is a motion to dismiss an appeal, and is based on the ground that the notice therefor does not sufficiently identify the judgment sought to be reviewed. Omitting the title of the court and cause, the names of the defendant and its attorneys who are addressed, and the names of the attorneys subscribed to the, notice, it reads:

“You. will please take notice that the above-named plaintiff (appellant) appeals to the Supreme Court of this state from the judgment entered May 23d, in favor of the defendant (respondent), and appeals from the whole of such judgment. ’ ’

The transcript herein shows that a regular term of the Circuit Court of the State of Oregon for Coos County was held at the courthouse in that county, commencing April 27, 1914; the same being the fourth Monday in that month and the time fixed by law for holding such term, at which were present the trial judge and other officers.

“When on Saturday, the 23d day of May, 1914, the same being the twenty-second judicial day of said term of said court, the following proceedings, among others, were had, to wit: Eino Raiha, Plaintiff, v. Coos Bay Coal & Fuel Company, Defendant. No. 3840. Now, at this time the jury impaneled to try the above-.entitled cause having returned their verdict in favor of the defendant and against the plaintiff, which verdict is received by the court and filed herein. On motion of defendant for judgment on such verdict, it is considered, ordered and adjudged that judgment be and the same is hereby rendered and given in favor of the defendant and against the plaintiff for its costs and disbursements. (Journal signed.)

“John S. Coke,

“Judge.”

The undertaking on appeal does not identify the judgment complained of with any greater particularity than the specification in the notice. The statute referring to the written means of initiating an appeal is in part as follows:

‘ ‘ Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the Supreme Court or Circuit Court, as the case may be, from tbe judgment, order or decree, or some specified part thereof”: Section 550, L. O. L.

It is admitted tbat tbe several requirements of tbe statute have been complied with, but it is maintained tbat tbe judgment is not adequately specified in tbe notice of appeal. Under tbe practice formerly prevailing in tbis court, a notice of appeal as indefinite as tbe one under consideration would probably be regarded as insufficient: Crawford v. Wist, 26 Or. 596 (39 Pac. 218); Duffy v. McMahon, 30 Or. 306 (47 Pac. 787); Hamilton v. Butler, 33 Or. 370 (54 Pac. 200). Tbe later decisions, however, are to tbe effect tbat if, from an inspection of tbe notice of appeal it can be determined by fair construction or reasonable intendment, and without resort to evidence aliunde tbe transcript, tbat tbe appeal is taken from tbe judgment or decree in a particular case, it will be sufficient to confer jurisdiction of tbe cause: Summers v. Geer, 50 Or. 249 (85 Pac. 513, 93 Pac. 133); Ferrari v. Beaver Hill Coal Co., 54 Or. 210 (94 Pac. 181, 95 Pac. 498, 102 Pac. 175, 1016); Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197); MacMahon v. Hull, 63 Or. 133 (119 Pac. 348, 124 Pac. 474, 126 Pac. 3); Holton v. Holton, 64 Or. 290 (129 Pac. 532); Fraley v. Hoban, 69 Or. 180 (133 Pac. 1190).

An oral notice of appeal, given when tbe judgment or decree is rendered, is now sufficient to secure a transfer of tbe cause, if a proper undertaking be given and tbe transcript filed within tbe time limited therefor : Section 550, L. O. L. As consonant with this late enactment, tbe procedure tbat heretofore obtained, with respect to tbe manner of inaugurating an appeal, has been so modified as to avoid all technicalities, and a written notice is now held to be sufficient if it complies with the requirements of the statute hereinbefore quoted, and, if from an inspection thereof the adverse party could not have been misled as to the order, judgment or decree undertaken to be reviewed.

Believing that the notice of appeal herein is adequate in these particulars, the motion to dismiss the appeal should be denied, and it is so ordered.

Motion to Dismiss Denied.